It is a special pleasure to welcome the 22nd book in the series The Common Core of European Private Law. This book is edited by two Dutch scholars. Their works are already renowned and appreciated well beyond the ‘Common Core’ circles.

The Common Core project was launched in 1993 at the University of Trento under the auspices of the late Professor Rudolf B. Schlesinger. The methodology used in the Common Core project, then novel, is now a classic. By making use of case studies, it goes beyond mere description to detailed inquiry into how most European Union legal systems resolve specific legal questions in practice, and to thorough comparisons between those systems. It is our hope that these volumes will provide scholars with a valuable tool for research in comparative law and in their own national legal systems. The collection of materials that the Common Core project is off ering to the scholarly community is already quite extensive and will become even more so as more volumes are published. The availability of materials attempting a genuine analysis of how things seem to be is, in our opinion, a prerequisite for an intelligent and critical discussion on how they should be. Perhaps in the future European private law will be authoritatively restated or even codified. As of today, the Common Core project is the longestrunning scholarly enterprise in the field. The analytical work carried out by the more than 300 scholars that have so far joined us in the Common Core project is also a precious asset of knowledge and legitimisation for any such a normative enterprise.

We must thank the editors and contributors for their work. With a sense of deep gratitude, we also wish to recall our late Honorary Editors, Professors Rudolf B. Schlesinger and Rodolfo Sacco.

No scholarly project can survive without committed sponsors. The International University College of Turin allows us to organise the General Meetings together with the Centro Studi di Diritto Comparato of Trieste. The European Commission has partially sponsored some of our past General Meetings, having included them in their High Level Conferences Program.

It is a special pleasure to welcome the 19th book in the series The Common Core of European Private Law, the second published by Intersentia. This book is edited by three scholars, who together represent four different legal cultures: the Dutch, the English, the German, and the Italian. Their works are already renowned and appreciated well beyond the ‘Common Core’ circles.

The Common Core project was launched in 1993 at the University of Trento under the auspices of the late Professor Rudolf B. Schlesinger. The methodology used in the Common Core project, then novel, is now a classic. By making use of case studies, it goes beyond mere description to detailed inquiry into how most European Union legal systems resolve specific legal questions in practice, and thorough to comparisons between those systems. It is our hope that these volumes will provide scholars with a valuable tool for research in comparative law and in their own national legal systems. The collection of materials that the Common Core project is offering to the scholarly community is already quite extensive and will become even more so as more volumes are published. The availability of materials attempting a genuine analysis of how things seem to be is, in our opinion, a prerequisite for an intelligent and critical discussion on how they should be. Perhaps in the future European private law will be authoritatively restated or even codified. As of today, the Common Core project is the longest-running scholarly enterprise in the field. The analytical work carried out by the more than 300 scholars that have so far joined us in the Common Core project is also a precious asset of knowledge and legitimisation for any such a normative enterprise.

We must thank the editors and contributors for their work. With a sense of deep gratitude, we also wish to recall our late Honorary Editor, Professor Rudolf B. Schlesinger. We are sad that we have not been able to present him with the results of a project in which he believed so firmly.

No scholarly project can survive without committed sponsors. The International University College of Turin allows us to organise the General Meetings together with the Centro Studi di Diritto Comparato of Trieste. The European Commission has partially sponsored some of our past General Meetings, having included them in their High Level Conferences Program.

It is a special pleasure to welcome the 18th book in the series The Common Core of European Private Law, the first published by Intersentia. This book is edited by three scholars, who together represent two different legal cultures: the Dutch and the Scottish. Their works are already renowned and appreciated well beyond the ‘Common Core’ circles.

The Common Core project was launched in 1993 at the University of Trento under the auspices of the late Professor Rudolf B. Schlesinger. The methodology used in the Common Core project, then novel, is now a classic. By making use of case studies, it goes beyond mere description to detailed inquiry into how most European Union legal systems resolve specific legal questions in practice, and to thorough comparisons between those systems. It is our hope that these volumes will provide scholars with a valuable tool for research in comparative law and in their own national legal systems. The collection of materials that the Common Core project is offering to the scholarly community is already quite extensive and will become even more so as more volumes are published. The availability of materials attempting a genuine analysis of how things seem to be is, in our opinion, a prerequisite for an intelligent and critical discussion on how they should be. Perhaps in the future European private law will be authoritatively restated or even codified. As of today, the Common Core project is the longest-running scholarly enterprise in the field. The analytical work carried out by the more than 300 scholars that have so far joined us in the Common Core project is also a precious asset of knowledge and legitimisation for any such a normative enterprise.

We must thank the editors and contributors for their work. With a sense of deep gratitude, we also wish to recall our late Honorary Editor, Professor Rudolf B. Schlesinger. We are sad that we have not been able to present him with the results of a project in which he believed so firmly.

No scholarly project can survive without committed sponsors. The International University College of Turin allows us to organise the General Meetings together with the Centro Studi di Diritto Comparato of Trieste.

Comparative law means different things to different people, and each of these meanings can, in and of itself, be scientifically acceptable. Comparative law may be seen as the macro-comparison of the world’s legal systems; as the study of legal transplants – that is, of the borrowing of ideas between legal cultures and/or systems; as the most fruitful way of exploring the relationship between law and society, and the underlying perceptions of law; as well as the magnifying glass through which one best observes how state law lives side by side with other (supranational and domestic) sources of law and, thereby, how relative the notion of state power (as spread by mainstream political analysis) can be. This Companion goes through these and other possible meanings of comparative law, trying to show how the diverse working methods entailed by each of them can all be useful tools for the understanding of legal phenomena, as long as they stay close to what the law is and to how the law lives in the different settings – regardless of what one might like (and regardless of what any kind of personal and cultural bias may expect) the law to be.

This very approach also helps one realize how our discipline should, and this Companion does, take up the challenge launched by the fast evolving fields of international law and ‘global’ law. The latter areas are crowded – with some prominent exceptions – with experts whose cultural toolkits make the analysis focus largely on positive, or would-be positive (as is the case for most soft-law initiatives), legal rules. Comparative law, by contrast, looks at the law taking into consideration all the possible interactions between the primary sources, be they official or unofficial, dictating the rules and the activities necessary to apply the rules. Therefore, for any comparatist, there is no serious chance of leaving aside any unofficial factor, including those of a geopolitical nature, able to affect the convictions and the legal culture of the rule-setters, the decision-makers, and the law-users.

This is the twelfth book in the series The Common Core of European Private Law published within the Cambridge Studies in International and Comparative Law. The project was launched in 1993 under the auspices of the late Professor Rudolf B. Schlesinger.

The methodology used in the project is still unparalleled. By making use of case studies it goes beyond mere description to detailed inquiry into how most European Union legal systems resolve specific legal questions in practice, and to thorough comparison between those systems. It is our hope that these volumes will provide scholars with a valuable tool for research in comparative law and in their own national legal systems. The collection of materials that the Common Core Project is offering to the scholarly community is already quite extensive and will become even more so when more volumes are published. The availability of materials attempting a genuine analysis of how things are is, in our opinion, a prerequisite for a fully-fledged and critical discussion on how they should be. Perhaps in the future European private law will be authoritatively restated or even codified. The analytical work carried on today by the almost 200 scholars involved in the Common Core Project is a precious asset of knowledge and legitimisation for any such normative enterprise.

We must thank the editors and contributors to the already published volumes, and those who are working hard to achieve future results.

The interest and scope of the enquiry

The topic to which this book is dedicated is of great interest for anybody concerned with the expanding field of European private law. In several European countries business transactions commonly require the use of trusts. The litigation of trust law issues in a business context is becoming more frequent than in the past. At the European level, legal instruments enacted by the European Community make explicit reference to trusts, or regulate transactions involving both trusts and other investment vehicles. Principles of European Trust Law, drafted by a distinguished group of scholars, are now available to provide guidance on the development of trust law in European jurisdictions. At the international level, the Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition has entered into force in several countries, providing much-needed solutions to conflicts problems raised by trusts, but also posing fresh questions on its impact and its implementation.

The great practical importance of the subject closely matches its burning academic interest. Trusts straddle the law of property and the law of personal obligations. Located at the intersection of core categories of private law, they pose problems that turn on the proper understanding of fundamental notions of private law. From the academic point of view, trusts also raise essential questions about competing claims to property, as well as about the management of property in the broadest sense. Both sets of questions involve hotly debated subjects.

This book is the result of a genuinely collective enterprise. As a project, it was conceived at a preliminary meeting of one and a half days in March 1998 at the University of Trento, within a small group made up of two of the editors (Graziadei and Mattei), the chairman of the property group of the Common Core project, Professor Antonio Gambaro, and leading trust scholars Professor John Langbein from Yale, Professor Hein Kötz from Hamburg and Professor Shael Herman from Tulane. At that meeting general issues of applicability of common core methodology to the domain of trust were discussed, and a clear sense emerged that the focus should be on trust law in the commercial setting.

The trust project was officially launched in July of the same year at the general meeting of the Common Core project, in Trento, where a rudimentary first draft questionnaire was discussed in depth under the leadership of Professor Antonio Gambaro, at the property session. At that meeting Lionel Smith (at that time of Oxford University) joined the editorial team and the first participants joined in. In June 1999 all the participants to the project met in Como for a three-day conference sponsored by the University of Insubria. At that meeting draft responses to the new version of the questionnaire were discussed together with Professor John Langbein, who also gave a speech on institutional investors and the law of trusts.